Ex-judge predicts “spectacular” argument against Prop. 8

The now-retired federal judge who struck down California’s ban on same-sex marriage has caused a bit of a stir in an e-mail exchange, leaked to a conservative blogger, in which he predicts the lawyer advocating gay marriage rights will present a “spectacular” argument to the Supreme Court.

The website Patterico.com reported the December correspondence between former Chief U.S. District Judge Vaughn Walker of San Francisco and the Los Angeles law firm of Theodore Olson, who is scheduled to argue the case against Proposition 8 in the high court on Tuesday. Blogger Patrick Frey said he received the e-mails Thursday from a “trusted source” and is satisfied they are authentic.

Walker, an appointee of President George H.W. Bush, wrote the August 2010 ruling declaring that the same-sex marriage ban violated the constitutional guarantee of equal protection of the laws. He retired from the bench six months later and has returned to private law practice. Olson, former U.S. solicitor general under President George W. Bush, also argued the case before Walker on behalf of two gay and lesbian couples.

In the first e-mail, written just after the Supreme Court agreed to review the case, Walker asked one of Olson’s law partners to ask Olson whether it would be an “unwanted distraction” if Walker attended the Supreme Court hearing. Three days later, the unidentified partner replied that, after talking to Olson, they had concluded it could be a distraction in view of the flurry of attention Walker received when he disclosed, shortly after his retirement, that he was a gay man with a longtime same-sex partner.

Walker replied that he wasn’t surprised and was only “modestly disappointed” to have to miss the hearing. “Ted’s argument will be spectacular, I’m sure,” he added.

As a private citizen, Walker is no longer bound by the rules that require judges to keep silent on issues that might come before them. Still, Frey, a Los Angeles prosecutor who moonlights as Patterico, said the e-mails suggest an unseemly “cozy relationship” between Walker and Olson, and said Walker comes across as a “well-wisher” rather than an “impartial former jurist.”

Conservative commentator Ed Whelan went a step further in National Review Online, saying Walker’s “partisan cheerleading” would come as no surprise to anyone who had followed his “outlandishly biased” handling of the Prop. 8 case.

A spokeswoman said Walker isn’t commenting publicly on quesitons related to Prop. 8. But Diane Karpman, a Beverly Hills attorney and longtime commentator on judicial ethics, said she saw nothing wrong with Walker’s comments.

“He’s a free citizen” and his exchange with the law firm “has no impact on the case,” Karpman said. She said Walker, a former corporate lawyer, is obviously well acquainted with Olson and his megafirm, Gibson, Dunn & Crutcher, and knows firsthand the quality of Olson’s arguments on Prop. 8.

There would have been nothing improper about Walker’s attending the Supreme Court hearing, Karpman said, but “he’s so keenly concerned about his role that he’s courteous enough to ask. …All our judges should be like him.”